The opinion of the court was delivered by: RONALD GUZMAN, District Judge

MEMORANDUM OPINION AND ORDER

Petitioner Jerrold Davis is in the custody of Eugene McAdory,
warden of the Menard Correctional Center in Menard, Illinois. He
petitions this Court for a writ of habeas corpus pursuant to
28 U.S.C. § 2254 and asserts eight grounds for relief. For the
reasons stated below, the Court denies the petition.

Larion Jackson was shot and killed around 2:30 a.m. on July 7,
1998. He was on a porch at 512 North Laramie with his brother,
Chris Jackson, and several others at the time of the shooting.

At trial, Chris Jackson testified that he, Larion, and several
others were playing cards on the porch when he heard a click as
the card game was wrapping up. He then looked toward the street
and saw two men, one with a shotgun and the other with a handgun,
about ten feet away with guns aimed at the porch. The men started shooting, and Chris
crawled into the house. He testified that he heard about seven or
eight shots fired. Chris also testified that he was able to see
the face of the shooter with the handgun, he believed that the
shooter with the handgun was Jerrold Davis, and that Jerrold was
wearing a black, hooded sweatshirt. After the shooting, Chris
went back on the porch and saw Larion on the porch with a gunshot
wound. Chris gave the police a description of the shooter.
Additionally, several days after the shooting, he viewed a lineup
and identified Davis as the shooter with the handgun.

At trial, Jemar Williams also testified. He stated he had seen
Davis "throwing up" gang signs while near Blackstone street gang
members. Although Williams had signed a statement in the presence
of an Assistant State's Attorney and Detective Gilger stating he
had witnessed the shooting, at trial he denied he saw the
shooting. He testified that he signed the statement due to police
coercion. The prosecution offered Williams' original statement
into evidence and it was admitted. In Williams' original
statement he stated that he was on the front porch of his house
on July 7, 1998 at about 2:30 a.m., he saw a white, four-door
Ford Tempo pull up. The driver of the car was Jerrold's twin
brother, Derrold Davis. He further testified that when the car
pulled up, Jerrold and a third man left the car. Jerrold was
wearing a black hooded sweatshirt with matching pants and was
carrying either a nine millimeter or .45 caliber handgun. After
walking up to the gate at 512 North Laramie, the two men started
shooting at the porch. Williams stated that when the shooting
occurred fifteen to eighteen people were on the porch. When the
shots were fired the people on the porch began to run and attempt
to get into the house. According to Williams, the man with the
shotgun fired twice and Jerrold fired over ten times. Williams
saw a man on the porch fall down and, after the shooting, saw the
two men get back into the car and drive away. Macanzie Clark was also a witness for the prosecution. When
Clark was detained on July 11, 1998, he told Detective Gilger
that on the day after the shooting, Jerrold told him that he and
another person shot at the porch on Laramie. Clark also stated
Jerrold said he was the one carrying the shotgun. Clark had known
Jerrold and Derrold since the sixth grade and was able to tell
them apart because one had a mole on his face. Clark took a
polygraph exam, and after being told the results, he admitted he
had lied about Jerrold holding the shotgun. Instead, Clark then
stated that Jerrold told him he had the .45 caliber gun. Clark
stated that the reason he fabricated the first story was that he
did not want to get Jerrold in more trouble than he was in
already. Clark's account of his conversation with Jerrold was
admitted at trial as a handwritten statement. Clark also
testified at a grand jury proceeding and again stated that
Jerrold had the.45 caliber gun. This testimony was also admitted
at trial.

In his grand jury testimony, Clark recounted what he asserted
Jerrold had told him regarding the shooting. Clark testified that
he himself was a member of the Black Peace Stones gang and that
the Black Peace Stones were at war with the Traveling Vice Lords
and the Undertaker gangs. Clark stated that Jerrold believed the
people on the Laramie porch were members of the Traveling Vice
Lords or the Undertaker gangs. He stated that Jerrold said the
car in which he rode was parked about two houses away from 512
North Laramie. He testified that Jerrold stated that he and the
man in the back seat got out of the car and the man in the back
seat was armed with a pump shotgun and shot first. Jerrold also
said he fired the .45 caliber gun "a lot of times." He stated
that Jerrold said the men then returned to the car and drove
away. During his testimony, Clark stated that he originally lied
to the police to protect Jerrold, but he was telling the truth to
the grand jury because he recognized the severity of the charge.

At the jury trial, Clark denied that Jerrold confessed to the
shooting. He admitted that he had made prior inconsistent statements, but he said the
inconsistent statements were due to police coercion.

When Detective Gilger testified at trial he spoke about the
circumstances and content of Clark and Williams' oral and
handwritten statements. He also testified that both Chris Jackson
and Williams viewed separate lineups and identified Jerrold as
the shooter with the handgun. Detective Gilger also testified as
an expert witness about gangs in the area of the shooting. He
testified that in the summer of 1998 the Vicelord and the
Blackstone gangs were at war over the right to sell drugs in the
area where the shooting occurred.

Larion's autopsy showed he died of a gunshot wound to the head.
Two fired bullets and seven cartridge casings were recovered from
the scene, all from a .45 caliber gun. The casings and bullets
were also found to be from the same gun. Additionally, a shotgun
shell was found at the scene and shotgun wadding was found under
Larion's body.

PROCEDURAL HISTORY

On December 13, 2000, in Cook County, Illinois, a jury found
Jerrold guilty of first degree murder and attempt murder. Jerrold
was sentenced to respective concurrent terms of forty years and
thirty years in prison. The Honorable Colleen McSweeney Moore
denied Jerrold's motion for a new trial.

Jerrold appealed to the Illinois Court of Appeals, arguing the
following: (1) Detective Gilger was not qualified as a gang
expert and the admission of his testimony was improper; (2) he
was denied a fair trial when the trial court improperly admitted
gang and drug testimony of Clark and Williams; (3) he was denied
a fair trial when the court abused its discretion and made
numerous incorrect evidentiary rulings; (4) it was reversible
error for the trial judge to consider the evidence from a co-defendant's earlier trial when ruling on
issues in his trial; (5) it was reversible error to admit and
publish bloody photographs that were of no probative value and
highly prejudicial; (6) it was reversible error to admit
polygraph evidence of a state witness; (7) it was reversible
error for the trial court to give jury instructions which allowed
for a finding of guilt for murder and attempted murder based upon
"great bodily harm" language; and (8) he was not proven guilty
beyond a reasonable doubt. On September 30, 2002, the Appellate
Court affirmed Jerrold's conviction.

On October 21, 2002, Jerrold petitioned for leave to appeal to
the Supreme Court of Illinois and presented only three issues for
review. First, Jerrold argued Detective Gilger was not qualified
to offer expert opinion testimony regarding gangs. Second, he
asserted he was denied a fair trial because the trial court
improperly admitted testimony from Williams and Clark. Third, he
claimed that the evidence presented in the case was insufficient
for a conviction beyond a reasonable doubt. On February 5, 2003,
the Supreme Court of Illinois denied Jerrold's petition for leave
to appeal.

On January 26, 2004, Davis filed the instant petition for writ
of habeas corpus, and on March 11, 2004, he filed an amended
petition. He raises the following claims: (1) Detective Gilger
was not qualified as a gang expert and the admission of his
testimony was improper; (2) he was denied a fair trial when the
trial court admitted the gang and drug testimony of Clark and
Williams; (3) he was denied a fair trial when the court abused
its discretion and made numerous incorrect evidentiary rulings;
(4) it was reversible error for the trial judge to consider the
evidence from a co-defendant's earlier trial when ruling on
issues in his trial; (5) it was reversible error to admit and
publish bloody photographs that were of no probative value and
highly prejudicial; (6) it was reversible error to admit
polygraph evidence of a state witness; (7) it was reversible error for the trial court to give jury
instructions which allowed for a finding of guilt for murder and
attempted murder based upon "great bodily harm" language; and (8)
he was not proven guilty beyond a reasonable doubt.

DISCUSSION

I. Non-cognizable Claims

As an initial matter, at least five of Jerrold's eight claims
are non-cognizable under habeas review because he merely
complains about the state court's application of state law.
Federal habeas relief is available to a person who establishes
that his incarceration violates the Constitution, laws or
treaties of the United States. Estelle v. McGuire, 502 U.S. 62,
67-68 (1991); see Smith v. Phillips, 455 U.S. 209, 221 (1982);
Haas v. Abrahamson, 910 F.2d 384, 389 (7th Cir. 1990); Jones
v. Thieret, 846 F.2d 457, 459-61 (7th Cir. 1988). Thus, the
following claims in which Jerrold argues that the state court
erred in applying Illinois law are not cognizable under habeas
review: (1) Detective Gilger was not qualified as a gang expert
and the admission of his testimony was improper; (2) it was
reversible error for the trial judge to consider the evidence
from a co-defendant's earlier trial when ruling on issues in his
trial; (3) it was reversible error to admit and publish bloody
photographs that were of no probative value and highly
prejudicial; (4) it was reversible error to admit polygraph
evidence of a state witness; (5) it was reversible error for the
trial court to give jury instructions which allowed for a finding
of guilt for murder and attempted murder based upon "great bodily
harm" language. Out of an abundance of caution, below the Court
addresses all of Jerrold's claims as if he had raised them as
constitutional violations. II. Procedural Default

Prior to a federal court granting habeas relief to a state
prisoner, the prisoner must exhaust all of his remedies in state
court. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999)
(explaining that comity requires the state court to have the
first chance to review whether a state imprisonment violates
federal law). To exhaust his state remedies, the petitioner must
have presented each claim fully and fairly to the state courts.
Harris v. McAdory, 334 F.3d 665, 668 (7th Cir. 2003); Kurzawa
v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998). "[S]tate prisoners
must give the state courts one full opportunity to resolve any
constitutional issues by invoking one complete round of the
State's established appellate review process." O'Sullivan,
526 U.S. at 845.

As stated above, although Davis raises eight claims in his
habeas petition, he raised only three claims in his petition for
leave to appeal to the Supreme Court of Illinois. Therefore, the
following five claims are procedurally defaulted because Jerrold
failed to present them to the Supreme Court of Illinois: (1) the
trial court made numerous incorrect evidentiary rulings; (2) the
trial court erred by using its knowledge of the co-defendant's
trial when making rulings; (3) the trial court erred in admitting
bloody photographs of the victim; (4) the trial court erred in
admitting evidence regarding a witnesses' polygraph test; and (5)
the jury instructions were incorrect.

Failure to raise a claim in a full round of state appellate
review is not the only way a claim may be procedurally defaulted.
A claim may also be defaulted if the state court declined to
reach its merits because the state court based its decision on an
independent state law ground that is adequate to support the
judgment. Coleman v. Thompson, 501 U.S. 722, 729-730 (1991). A
state court judgment is independent if the state court actually
relied on a state rule that is sufficient to justify its decision, and it is adequate if the
state court acts in a consistent and reasoned way. Prihoda v.
McCaughtry, 910 F.2d 1379, 1382-84 (7th Cir. 1990). This
doctrine ensures that federal courts respect a state's legitimate
reasons for holding a prisoner. Coleman, 501 U.S. at 730.
("Without the rule, . . . habeas would offer state prisoners
whose custody was supported by independent and adequate state
grounds an end run around the limits of this Court's jurisdiction
and a means to undermine the State's interest in enforcing its
laws").

Seven of Jerrold's eight habeas claims are procedurally
defaulted on the basis of the independent adequate and state
grounds doctrine. The Court addresses each in turn.

First, with regard to Jerrold's argument that the trial court
improperly admitted Detective Gilger's testimony regarding gangs,
the appellate court based its analysis of the testimony on a
three-part test used by Illinois courts to determine whether a
police officer may testify regarding gang activity: (1) whether
the testimony qualifies as an expert opinion; (2) whether the
testimony was relevant; and (3) whether the unfairly prejudicial
effect of the testimony substantially outweigh its probative
value. See People v. Davis, 779 N.E.2d 443, 456-58
(Ill.App.Ct. 2002). The appellate court applied the three factors of the
test to the case before it: (1) Detective Gilger's qualifications
as a violent crimes and gang officer and his experience
investigating gang shootings; (2) the relevance of his testimony,
which was crucial to establish motive; and (3) the risk of unfair
prejudice did not substantially outweigh the probative value of
Gilger's testimony. Additionally, the appellate court's
application of Illinois law was consistent with its approach in
other cases. See, e.g., id.; People v. Williams,
753 N.E.2d 1089, 1100-01 (Ill.App.Ct. 2001); People v. Jackson,
495 N.E.2d 1207, 1214-15 (Ill.App.Ct. 1986). Because the appellate
court relied on an independent and adequate state ground, this
Court may not reach a decision on the merits of this habeas
claim. Next, Jerrold's claim that the trial court erred in admitting
evidence regarding Clark's polygraph test is procedurally barred
because the appellate court disposed of the claim on an
independent and adequate state law ground. The appellate court
relied on People v. Jackson, 556 N.E.2d 619, 629 (Ill.App.Ct.
1990), which held that evidence concerning a polygraph
examination is admissible on the issue of voluntariness of a
statement when accompanied by a jury instruction that limits
consideration of such evidence for the sole purpose of
determining whether the defendant's statement was voluntary. The
appellate court found the circumstances in Jerrold's case nearly
identical to those in Jackson in that Clark claimed his
statement that incriminated Jerrold was involuntary and the trial
court gave the jury the same limiting instruction. Further, the
appellate court's ruling comports with other state court rulings
on the issue of admissibility of polygraph test evidence in this
limited situation and with the proper precautions. See, e.g.,
People v. Jefferson, 705 N.E.2d 56, 62 (Ill. 1998); People v.
Triplett, 226 N.E.2d 30, 32-33 (Ill. 1967). Accordingly, this
claim is procedurally barred and the Court need not address the
merits.

In addition, some of Jerrold's habeas claims are procedurally
defaulted because the appellate court held that he had waived the
issues on appeal for failure to comply with a state procedural
requirement. When a state court declines to address a prisoner's
claim because he has failed to meet a state procedural
requirement, federal courts may not address the issue in habeas
proceedings. Coleman, 501 U.S. at 730; Rodriguez v. McAdory,
318 F.3d 733, 735 (7th Cir. 2003).

First, the appellate court held that the following issues were
waived on appeal because Jerrold failed to raise the issues
either during trial or in his post-trial motion, citing People
v. Enoch, 522 N.E.2d 1124, 1129-30 (Ill. 1988): (1) the court
improperly admitted gang and drug testimony of Williams; (2) the court made various improper
evidentiary rulings; and (3) the court erred in considering
evidence from a co-defendant's trial when making pre-trial
evidentiary rulings; (4) the court erred in admitting evidence
regarding Clark's polygraph test; (5) the court erred in giving
improper jury instructions. The appellate court clearly relied on
Illinois law, and in doing so its ruling comported with decisions
of other appellate courts to have reached the issue. See, e.g.,
People v. Ward, 609 N.E.2d 252, 259 (Ill.App.Ct. 1992).

Second, the appellate court held that the issues (1) whether
the court erred in admitting the gang and drug testimony of Clark
and (2) whether the court erred in admitting bloody photographs
of the deceased were waived because Jerrold failed to support his
appellate arguments with citations to the record or to legal
authority in violation of Illinois Supreme Court Rule 341(e)(7)
(requiring arguments to "contain the contentions of the appellant
and the reasons therefor, with citation of the authorities and
the pages of the record relied on"). These rulings were in accord
with Flynn v. Vancil, 242 N.E.2d 237, 241 (Ill. 1968), People
v. Williams, 640 N.E.2d 981, 984 (Ill.App.Ct. 1994), People
v. Loera, 619 N.E.2d 1300, 1316 (Ill.App.Ct. 1993), and People
v. Isbell, 532 N.E.2d 964, 970 (Ill.App.Ct. 1988). Thus, these
claims are procedurally barred.

Therefore, seven of Jerrold's eight claims are procedurally
defaulted. They are: (1) Detective Gilger was not qualified as a
gang expert and the admission of his testimony was improper; (2)
he was denied a fair trial when the trial court admitted the gang
and drug testimony of Clark and Williams; (3) he was denied a
fair trial when the court abused its discretion and made numerous
incorrect evidentiary rulings; (4) the trial judge erroneously
considered the evidence from a co-defendant's earlier trial when
ruling on issues in his trial; (5) the trial court improperly
admitted and published bloody photographs that were of no
probative value and highly prejudicial; (6) the trial court erred when it admitted
polygraph test evidence of Clark; and (7) it was reversible error
for the trial court to give jury instructions which allowed for a
finding of guilt for murder and attempted murder based upon
"great bodily harm" language.

However, Jerrold may revive his defaulted claims if he
demonstrates: (1) cause for the default and actual prejudice
resulting from this Court's failure to consider the merits of the
claim; (2) or that a failure to consider the claims will result
in a miscarriage of justice. Rodriguez v. Scillia,
193 F.3d 913, 917 (7th Cir. 1999). Cause may be shown by citing an
objective, external factor which impeded counsel's efforts to
comply with the procedural rules of the state. Murray v.
Carrier, 477 U.S. 478, 488 (1986). However, Jerrold has failed
to provide any reason for his failure to raise certain issues
during trial, on appeal, or in his petition for leave to appeal
to the Supreme Court of Illinois.

Because Jerrold fails to advance any cause for his defaults,
external or otherwise, his claims may only be considered by this
Court if its declining to address the claims would result in a
"fundamental miscarriage of justice." Rodriguez,
193 F.3d at 917. To overcome procedural defaults and allow a federal court to
grant a writ of habeas corpus absent a showing of cause requires
"an extraordinary case? where a constitutional violation has
probably resulted in the conviction of one who is actually
innocent." Murray, 477 U.S. at 496. "[A] petitioner does not
meet the threshold requirement unless he persuades the district
court that, in light of the new evidence, no juror, acting
reasonably, would have voted to find him guilty beyond a
reasonable doubt." Schlup v. Delo, 513 U.S. 298, 329 (1995).

Jerrold has not established that the fundamental miscarriage of
justice exception applies in his case. Even excluding all of the
evidence that Jerrold asserts was improperly admitted and all
objections he puts forth, other strong evidence of Jerrold's
guilt, such as Chris Jackson's eyewitness testimony, identification of the accused in a lineup,
and the shells and casings found at the scene, substantiates the
prosecution's case. Jackson's testimony combined with physical
evidence in the case is sufficient to establish guilt beyond a
reasonable doubt. Further, Jerrold does not assert that he is
actually innocent. Therefore, the Court's declining to reach the
merits of these claims would not lead to a fundamental
miscarriage of justice.

II. Merits

Respondent does not argue that Jerrold's eighth claim, that he
was deprived of due process because he was not proven guilty
beyond a reasonable doubt, has been procedurally defaulted, and
thus the Court reviews its merits. The review of a writ of habeas
corpus is governed by 28 U.S.C. § 2254, as amended by the
Antiterrorism and Effective Death Penalty Act ("AEDPA"). AEDPA
modified federal habeas law by creating a more deferential
standard under which the federal courts review state court
decisions. Bell v. Cone, 535 U.S. 685, 693 (2002). The Act
permits courts to grant petitions for writs of habeas corpus if
the claims the petitioner asserts were adjudicated by the state
courts on their merits and "resulted in a decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of
the United States," 28 U.S.C. § 2254(d)(1), or "resulted in a
decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State Court
proceeding." 28 U.S.C. § 2254(d)(2).

Under habeas review, claims regarding sufficiency of evidence
are given a "deferential standard of review, which requires us to
consider not whether the state courts were incorrect but whether
they were unreasonable." Trejo v. Hulick, 380 F.3d 1031, 1032
(7th Cir. 2004). A state court decision may be an unreasonable
application if it uses the correct legal standard, but applies that standard unreasonably to the facts of the prisoner's
case. Williams v. Taylor, 529 U.S. 362, 408 (2000). Further, if
a state court unreasonably extends or fails to extend a Supreme
Court precedent, a federal court may find an "unreasonable
application" of the law. Id. A state court's application of
Supreme Court law is reasonable if "the determination is at least
minimally consistent with the facts and circumstances of the
case." Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997). The
"reasonableness standard allows the state court's conclusion to
stand if it is one of several equally plausible outcomes." Hall
v. Washington, 106 F.3d 742, 748-49 (7th Cir. 1997).

Because Jerrold claims insufficiency of evidence to support his
conviction, the applicable Supreme Court case is Jackson v.
Virginia, which held that due process is satisfied if "after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt."
443 U.S. 307, 319 (1979). Accordingly, only when a state court has
unreasonably applied the Jackson standard may a federal court
grant habeas relief. Alvarez v. O'Sullivan, 58 F. Supp. 2d 882,
889 (N.D. Ill. 1999); see Ford v. Ahitow, 104 F.3d 926, 937
(7th Cir. 1997). The petitioner "must show that the facts of the
case `establish by clear and convincing evidence' that no
reasonable fact-finder would have found him guilty absent
constitutional error." Id. (quoting 28 U.S.C. § 2254(e)(2)(B)).

The Appellate Court correctly applied the Jackson standard.
It determined that the prosecution provided more than sufficient
evidence to allow a reasonable jury to find that it had proved
the elements of both crimes beyond a reasonable doubt. The court
focused specifically on the eyewitness testimony of Chris
Jackson, including his ability to identify Jerrold as the shooter
with the handgun, both in a lineup and at court. Additionally,
the court emphasized that Jackson's testimony was more or less corroborated by Williams'
statement. Williams testified as Jackson had, that Jerrold shot
the handgun and had on a black, hooded shirt. Williams also was
able to identify Jerrold in a lineup.

Moreover, Clark's prior testimony and grand jury testimony also
corroborated portions of Williams and Jackson's statements by
stating Jerrold told him there were two shooter: Jerrold with a
handgun and another shooter with a shotgun. Clark also testified
Jerrold told him he shot at the porch on Laramie because he
believed the people on the porch to be members of a rival gang.

The prosecution also presented physical evidence, including a
shotgun shell, shotgun wadding, fired cartridges from a .45
caliber fun, and fired bullets from a .45 caliber gun, all of
which were found at the scene. This evidence supports that there
were two shooters, one with a handgun and one with a shotgun.

Jerrold argues that the evidence raises serious doubts because
Williams' recanted his statement that he witnessed the shooting
at trial. He also asserts the identification of Jerrold was
faulty because of the differences in Jackson's eyewitness account
given on the scene to the police and at trial, such as which side
of the street the shooters were on. However, Jerrold had the
opportunity to point out faults in the testimony at trial. "[N]o
. . . rule condemns the admission of evidence that the defendant
deems untrustworthy, as long as the state affords the defendant
the means to demonstrate its weaknesses. . . ." Buie v.
McAdory, 341 F.3d 623, 625 (7th Cir. 2003). "Informants may be
lying, eyewitnesses may be tricked by their own memories, and
experts may produce flawed analyses. The tools of the adversary
process supply the means to expose these testimonial
shortcomings." Id.

Moreover, the differences in Jackson's testimony are not so
notable as to discredit his eyewitness account, particularity when the majority of his
assertions were corroborated by two other witnesses. A credible
eyewitness account is sufficient to support a conviction. See
Hairston, 263 N.E.2d 840, 851 (Ill. 1970) ("If the testimony of
the witnesses is positive and credible it is sufficient to
convict. . . ."). Here, Jackson, as well as Williams, positively
identified Jerrold in a lineup. Jackson's eyewitness testimony,
combined with the physical evidence and two other witnesses'
testimony was sufficient for a reasonable trier of fact to find
Jerrold guilty beyond a reasonable doubt. Therefore, the
appellate court's application of Supreme Court case law was not
unreasonable, and the Court denies the petition for writ of
habeas corpus.

CONCLUSION

For the foregoing reasons, the Court denies the petition for
writ of habeas corpus. This case is hereby terminated.

SO ORDERED

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.